Indiana Joins Legal Battle Against More Protection for Waterways

Indiana Attorney General’s office joined two dozen states in lawsuit opposing Biden administration’s “waters of the United States” definition
February 24, 2023

The state of Indiana is now part of a legal effort to reduce the types of waterways that fall under federal protection instead of often-more-lenient state regulations.

Indiana Attorney General Todd Rokita has signed up Indiana to be part of a lawsuit brought by the Republican attorneys general of 24 states seeking to repeal the Biden administration’s definition of “waters of the United States,” a rule that defines the limit of the federal government’s reach into pollution regulation.

The Clean Water Act regulates the discharge of pollutants into what the law specifies as “waters of the United States.” The ambiguous phrase has led to decades of legal wrangling, including various U.S. Supreme Court cases, leading the last three presidential administrations to alter the WOTUS definition.

The Trump administration reduced the number of waterways under federal protection. Both Obama administrations expanded the WOTUS definition to include more waterways, drawing the ire of farmers, land developers and other industries.

All fell to legal challenges.

The Biden administration’s WOTUS definition, set to become effective March 20, largely returns the U.S. to a definition put in place during the Reagan administration and observed until 2015.

The Republicans filing suit against the Biden administration argue that the administration has exceeded the jurisdiction given to it by the Clean Water Act.

They claim the new definition expands WOTUS to include “relatively permanent” waterways with no clear duration, alters the definition of the Supreme Court’s “significant nexus” test to determine which are “navigable waterways,” changes the definition of what constitutes tributaries and wetlands and allows the federal government to claim jurisdiction on any intrastate waterways that affect jurisdictional waters.

“We all want to conserve and preserve our natural resources,” Rokita said in a press release. “At the same time, exercising wise stewardship over the environment does not require citizens to surrender their legitimate liberties and rights to the federal government. And, in fact, we cannot tolerate edicts designed to subjugate free people in such a manner.”

The attorneys general said if the Biden WOTUS rule remains in place as it is, ranchers, farmers, miners, homebuilders and other landowners across the country would “struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.”

Trade groups for farmers and other polluting industries affected by the new definition have filed their own lawsuit challenging the rule, saying the stricter rules create “uncertainty,” a rationale they have used to oppose other environmental regulations.

Nearly 25,000 miles of state waterways have recreational use impairments due to excess bacteria and nutrients derived from farming practices. The pollution is from animal feces and fertilizers from concentrated animal feeding operations and other farming sources that are mostly unregulated and are allowed to enter waterways due to a loophole in the Clean Water Act that exempts agricultural runoff from regulation.

The Trump WOTUS rule, called the Navigable Waters Protection Rule, narrowed federal protections to just four categories of waterways, leaving out temporary streams, some wetlands and other waterways that would require farmers to get permits to develop.

In the last days of the Trump administration, Indiana state senators directly involved in the home building industry used the narrowed Trump WOTUS definition to introduce a bill removing protections for half of the state’s remaining wetlands and weakening protections that remained.

The Indiana Farm Bureau and other farming groups backed the bill, citing an end to regulatory uncertainty despite agriculture being statutorily exempt from most regulations. The bill was signed into law in 2021.

A task force established as a result of the law found that the loss of wetlands provided short-term economic benefits to farmers at the cost of long-term flood issues.

Farmers and other groups are now backing a return to a Trump-style WOTUS definition.

“Farmers and ranchers share the goal of protecting the resources we’re entrusted with. Clean water is important to all of us. Unfortunately, the new WOTUS rule once again gives the federal government sweeping authority over private lands. This isn’t what clean water regulations were intended to do. Farmers and ranchers should not have to hire a team of lawyers and consultants to determine how we can farm our land,” said American Farm Bureau Federation president Zippy Duvall.

The states’ lawsuit was filed in federal court in North Dakota. Whatever the decision on the case, any appeals would be handled by the 11-judge U.S. Court of Appeals for the Eighth Circuit, where 10 of the court’s 11 judges were appointed by Republicans.

Indiana Joins Legal Battle Against More Protection for Waterways